Working time - Case Round-Up: February 2018

In this month's round-up, Mark Shulman, consultant solicitor with Keystone Law, looks at a round-up of recent working time cases on compensation for injury to feelings, rest breaks and illegality.

Mark Shulman, Consultant Solicitor at Keystone Law

Injury to feelings**

Section 45A of the ERA 1996 (as material) provides that:

"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker -

(a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998,

(b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations, …"

In [South Yorkshire Fire & Rescue Service v Mansell & Ors ]()UKEAT/0151/17/DM, the EAT considered whether an injury to feelings award could be made when there was a claim for detriment under section 45A of the ERA 1996.

The Claimant firefighters made a complaint against the Respondent fire authority of "working time detriment" under section 45A of the ERA 1996. The claims arose from the introduction of a new shift system which involved a breach of the WTR 1998. They were unwilling to volunteer to work on the new shifts and were compulsorily transferred to other fire stations. The Claimants alleged various detriments had been suffered including increased journey times and the loss of existing congenial working arrangements, as well as disruption to their work patterns and working relationships. At an ET the Claimants alleged a breach of section 45A of the ERA 1996 and succeeded on liability.

As to remedy, the Respondent contended that there was no jurisdiction to make awards for injury to feelings in a section 45A case. The ET disagreed and decided that it did have jurisdiction to make an award for injury to feelings. It concluded that "a complaint under section 45A of the Employment Rights Act 1996 is one of discrimination".

Section 45A principles
Was the ET right? Yes, said the EAT. Part V of the ERA 1996 refers to detriment in relation to various types of employment rights, including: jury service, health and safety cases, Sunday working, working time cases, trustees of occupational pension schemes, employee representatives, employees exercising the right to time off work for study or training, protected disclosures, leave for family and domestic reasons, tax credits, flexible working, studying and training, and employee shareholder status. Section 45A specifically related to cases of working time detriment. Section 49(1)(b) states that an ET "may make an award of compensation…" where such a complaint is well-founded.

It was common ground between the parties that discrimination specifically on the grounds of a protected characteristic (e.g. sex or race), could attract injury to feelings awards. It was also accepted by the Respondent that there could be such awards in cases involving detriment arising in the previously established section 49 categories, but injury to feelings awards should not be extended to working time detriment cases or to any of the other types of claims under Part V of the ERA 1996.

The Fire Authority particularly relied on the EAT decision in [Santos Gomes v Higher Level Care Ltd]() [2016] ICR 926 which decided that injury to feelings awards could not be made in a working time case claiming breach of the requirements relating to rest breaks.  Slade J had stated that such claims were akin to claims for breach of the contract and "… Claims for failure to allow rest breaks are not without more to be regarded as cases of discrimination which in other spheres could attract compensation for injury to feelings". On that basis the Fire Authority in the present case suggested that such awards were limited to the established categories of detriment cases which are treated as akin to discrimination in the strict sense (i.e. trade union activities and whistleblowing).

Having considered relevant case authorities, the EAT disagreed and considered that the following principles emerged:

* the language of section 49 ERA 1996 (which provides for remedies for various types of detriment claims under Part V ERA 1996) did not bar an award of compensation for injury to feelings in working time detriment cases; * a breach of the right not to suffer detriment under Part V of the ERA 1996 is a statutory tort. The established categories are treated as akin to discrimination cases in a "relatively loose sense" i.e. in that the Claimant has suffered some form of detriment on the grounds of their protected right or act. Whilst such a right may require a particular status (e.g. trade union membership or being a health and safety representative), that was not required; what mattered was the legal right afforded protection under Part V ERA 1996; a clear distinction had to be drawn between the separate questions of (i) whether an award of compensation for injured feelings is potentially available under section 49 and (ii) whether such compensation should actually* be awarded in a particular case; * there was no principled basis to distinguish between the individual rights conferred by Part V of the ERA 1996 for the purpose of awards for injury to feelings. In each case breach of the right is a statutory tort and akin to discrimination and victimisation.

In the light of these observations, the EAT agreed with the conclusions of the ET and with the observations of the editors of Harvey to the effect that an award for injury to feelings under section 49 ERA 1996 should not be restricted, but should potentially be available to all the forms of detriment claim under Part V of the ERA 1996. Accordingly, the appeal by the Respondent Fire Authority was dismissed.

Rest breaks
Under Regulation 12 of the WTR 1998, a worker has a right to an uninterrupted rest break of 20 minutes where the worker's daily working time is more than six hours. However, depending on the nature of a person's work, it is not always possible for a definite break to be planned for a shift and the WTR provide for compensatory rest breaks in these circumstances.

Had such a compensatory rest break been given in the case of a railway signaller when the employer's arrangements provided for an aggregate of separate breaks totalling more than 20 minutes over the course of a shift? No, said the EAT in [Crawford v Network Rail Infrastructure Ltd]() UKEAT/0316/16/BA.

The Claimant, Mr Crawford, was a railway signalman working on single manned boxes on eight-hour shifts. He had no rostered breaks but was expected to take breaks when there were naturally occurring breaks in work, although he was always "on call" during such breaks. Although none of the individual breaks lasted 20 minutes, in aggregate they lasted substantially more than 20 minutes. He claimed that he was entitled to an uninterrupted 20-minute "rest break" under Regulation 12 of the WTR or "compensatory rest" under regulation 24(a) (which says that his employer shall wherever possible allow him to take an equivalent period of compensatory rest).

In fact Regulation 12 did not apply to someone doing the job that Mr Crawford was doing.

Where a worker works in railway transport and their activities are linked to transport timetables and to ensuring the continuity and regularity of traffic and such a worker is required to work during what would otherwise be their rest break, an "equivalent period of compensatory rest" has to be given "wherever possible" (see Regulations 21(f) and 24(a)).

On Mr Crawford's complaint that he did not have a continuous 20-minute break on shift, the ET's findings implicitly accepted that Network Rail's arrangements were compliant with the compensatory rest provisions under Regulation 24(a).

Mr Crawford appealed and the issue for the EAT was whether those provisions complied with the compensatory rest requirements under Regulation 24.

Relevant case authority
There was only relevant authority on the meaning of Regulation 24(a) - [Hughes v The Corps of Commissionaires Management Ltd ]()[2011] EWCA Civ 1061 (8 September 2011). Elias LJ in the Court of Appeal in that case stated that:

"We would accept that if a period is properly to be described as an equivalent period of compensatory rest, it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible ensure that the period which is free from work is at least 20 minutes. If the break does not display those characteristics then we do not think it would meet the criteria of equivalence and compensation".

In the light of that ruling, the EAT in the present case thought it was "clear that what Elias LJ was saying was that there should be a break from work and, so far as possible, that that break should last at least 20 minutes" (emphasis added). Indeed, there was "no way round that conclusion". This meant that whilst it was suggested that Network Rail's system in this case was actually better from a health and safety point of view than a system involving a continuous 20-minute break, that was irrelevant under the WTR. As interpreted by the Court of Appeal, it is the length of the individual break that was crucial and it was not open to employers to decide otherwise on the basis of their views as to what health and safety required in a particular case.

It would in fact have been possible to provide such a break by providing a relief signaller (as found by the ET). Accordingly, there were some shifts which Mr Crawford was required to work where there was no opportunity for compensatory rest comprising a continuous break of 20 minutes.

The EAT allowed the appeal and remitted the matter back to the ET to identify which on which shifts there had been no proper compensatory rest. This would involve considering when Mr Crawford was required to work without a continuous break of 20 minutes in circumstances where it would have been possible to provide such a break through a relief signaller. Once it had been determined on which shifts Network Rail had been in breach of their obligations under the WTR, the ET could then consider the question of remedy.

Although not an issue on the appeal (because of the ET's view that a relief signaller could be provided), there is a "get-out" clause under Regulation 24(b) in exceptional cases where compensatory rest is not possible. That subsection provides that:

"in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker's health and safety."

Therefore, where (as in the present case) it is practicable to make provision for a continuous 20-minute break, ET's will expect that to happen and so it will only be in rare circumstances that an employer will be able to plea impracticability "for objective reasons".

Were various employment claims, including under the WTR, tainted by illegality? No, said the EAT in [Okedina v Chikale ]()UKEAT/0152/17/RN.

Ms C, a Malawi national, had initially been employed by the Respondent (also originally from Malawi) to look after the Respondent's parents in that country. In 2013, the Respondent brought Ms C to the UK, applying for a visa for her to work directly for the Respondent and her family as a domestic worker at their home in the UK. The visa was granted until 29 November 2013.

When in June 2015 Ms C asked for an increase in her pay and for holiday pay, this provoked an argument; the Respondent and her husband told Ms C to leave their home that evening and Ms C was thereby summarily dismissed.

She brought various employment claims, including under the WTR. The Respondent asserted that Ms C was not entitled to bring the claims in reliance upon an employment contract that was illegal, being in breach of immigration law.

The issue was whether sections 15 and 21 IANA rendered it illegal for Ms C to be employed contrary to her conditions of leave to remain (which expired on 29 November 2013). Also, the Respondent contended that the contract was further prohibited by virtue of the Immigration Rules which provided that anyone seeking leave to enter the UK as a domestic worker in a private household must meet the requirement that they intend to leave the UK at the end of six months or at the same time as the employer, whichever is the earlier.

Nothing inherently unlawful
The ET found that there was nothing inherently unlawful about the contract of employment: this case fell within the third category of the guidance laid down by Peter Gibson LJ in Hall v Woolston Hall Leisure Ltd [2001] ICR 99 CA. In Hall, it was envisaged that there might be different categories of illegality:

"30. In two types of case it is well established that illegality renders a contract unenforceable from the outset. One is where the contract is entered into with the intention of committing an illegal act; the other is where the contract is expressly or implicitly prohibited by statute …

  1. In a third category of cases a party may be prevented from enforcing it. That is where a contract, lawful when made, is illegally performed and the party knowingly participated in that illegal performance. …"

Although the ET was satisfied that the contract had been illegally performed after the expiry of Ms C's permit to work as a domestic worker, it found that Ms C had not participated in that illegality and upheld her WTR claim (and some of her other claims). The Respondent appealed.

No new contract
The Respondent submitted that if there was a new contract when Ms C came to the UK, it was prohibited by immigration law (and therefore void) when it was made (i.e. within the second category of illegality envisaged in Hall) because of various provisions under the relevant immigration legislation.

Was there a new contract? Ms C pointed out there was nothing in the ET's findings to support the suggestion that there was any new contract between the parties in 2013: the contract of employment was entered into between the parties in Malawi in September 2010. In 2013 there was a change in the way it was performed - Ms C was no longer employed to look after the Respondent's parents in Malawi but was brought to the UK to work directly for the Respondent – but there was no new contract.

She also contended that even if there had been a fresh contract, it was not prohibited by the relevant immigration legislation and was therefore lawful at inception. That was because when it was made, the contract was of indefinite duration, expressly subject to termination on 6 weeks' notice by either party. Ms C had been granted immigration status permitting her to work as a domestic worker for six months. Accordingly, when the contract was made it would not have been in breach of the relevant immigration provisions. She suggested that this was hardly surprising given that this was how the arrangement was being described to the Home Office in relation to the visa application to stay in the UK. The EAT agreed that the contract did not fall within the second category outlined in Hall (i.e. where the contract is expressly or implicitly prohibited by statute).

That led to the question as to whether the third category in Hall applied to Ms C (i.e. where a contract is lawfully made, but is illegally performed and the party knowingly participated in that illegal performance). No it didn't, said the EAT. The ET had found that Ms C had not knowingly engaged in any illegal performance of her contract of employment and was thus not complicit in any illegality that arose after 29 November 2013.

The ET had found that Ms C had relied on the Respondent to take care of her visa. An application was made by the Respondent in November 2013 with the aim of "regularising" Ms C's position in the UK. However, the application by the Respondent contained false information, asking for Ms C to be given leave to remain on the basis that she was a "family member". When this application was refused the Respondent completed an appeal form, again providing false information in support. Ms C was unaware of the appeal hearing before the First-tier Immigration Tribunal at which the Respondent's husband gave false information. Therefore, the illegality in performance of the contract as identified b[]( the Respondent did not render the contract unenforceable by Ms C.

In the circumstances, the challenge with regard to the ET's judgment and the issue of illegality could not succeed and the Respondent's appeal was dismissed.

**This case is somewhat unusual and likely to be confined to its specific facts. Employers should remember that under the Immigration Asylum and Nationality Act 2006, knowingly employing someone who is subject to immigration control and who does not have permission to work in the UK is a criminal offence (see section 21 IANA for further details).
Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator.

Published: 12/02/2018 11:29

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